Occasional Paper Gender Policy 7: For or Against Gender Equality? Evaluating the Post–Cold War "Rule of Law" Reforms in Sub-Saharan Africa

25 Oct 2005

Author(s): Celestine Nyamu-Musembi

Rule of law reforms - focused on areas such as commercial codes, bankruptcy, banking, tax and property laws, corporate governance and freedom of information - are seen as indispensable for establishing a market economy and democratic rule, the two prongs of the neoliberal project. Some concerns of the gender equality movement overlap with the rule of law agenda: ending the vicious effects of corruption, ineptitude and bias (including gender bias) in the functioning of institutions that administer justice; and progressive constitutional reforms to enhance legal protection from gender-based discrimination.

However, the author writes, rule of law reforms have not automatically translated into reforms that enhance gender equality. She identifies the following gaps:

Constitutional guarantees of rights have only a limited reach, particularly where customary and religious laws are not only allowed to regulate family matters but to supersede antidiscrimination laws.

Reforms to property law have at worst deepened gender inequality, and at best left existing biases intact.

Reforms have lacked serious engagement with informal or quasi-formal institutions, yet these play a key role in resolving disputes (particularly intrafamily ones), and have more impact than formal justice institutions in shaping gender relations.

Reforms to equip the judicial sector (for example through provision of new buildings and computerization) have privileged commercial dispute resolution and underinvested in subsectors such as family courts and legal aid.

Labour regulations and provision of social security benefits have not been extended to sectors such as small and medium-scale farming, informal businesses, domestic service and export processing zones, all of which are dominated by women.

The author reviews the reform programme in sub-Saharan Africa, discussesthe priorities that have been articulated by gender justice advocates in the region, and then evaluates the reform initiatives taken by governments and donors in order to highlight specific gender gaps in the rule of law agenda. She shows that funding institutions have not placed gender inequality at the centre of rule of law reforms. Even where governments profess commitment to gender equality, she says, this commitment is not reflected in the priorities or allocation of funds for legislative, judicialand law enforcement reforms. The author calls on gender equality advocates to mount a more coherent and direct challenge to market-based justifications for legal arrangements that generate or entrench gender inequalities.

Celestine Nyamu-Musembi is a Kenyan lawyer and a Research Fellow at the Institute of Development Studies, University of Sussex, United Kingdom.

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